U.S. Opposes Tech Companies’ Requests to Disclose Surveillance

The U.S. Department of Justice is formally opposing requests by technology companies to disclose more information about the frequency with which they are contacted by the U.S. government to give up user data under the Foreign Intelligence Surveillance Act.

Responding to petitions from Google, Microsoft, Yahoo, Facebook and LinkedIn, the government shut them down, as expected, because it said disclosures would pose a risk to national security. It’s unclear when a ruling will come in the secret court inside the Justice Department headquarters where the case is being held.

“Such information would be invaluable to our adversaries, who could thereby derive a clear picture of where the Government’s surveillance efforts are directed and how its surveillance activities change over time,” the brief said. “If our adversaries know which platforms the Government does not surveil, they can communicate over those platforms when, for example, planning a terrorist attack or the theft of state secrets.”

Google said in a statement today, “We’re disappointed that the Department of Justice opposed our petition for greater transparency around FISA requests for user information. We also believe more openness in the process is necessary since no one can fully see what the government has presented to the court.”

And Microsoft: “We will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security.”

Yahoo’s response: “”We are disappointed with the Justice Department’s decision to bar us and other Internet companies from publicly disclosing the specific number of user data requests that we receive from the U.S. Government under national security statutes. Yahoo and many other technology firms have made the commitment to share the number and type of government requests we receive for our users’ data through regular reports. The U.S. Government’s decision to block our ability to share with our users more granular information related to national security requests ultimately breeds mistrust and suspicion—both of the United States and of companies that must comply with government legal directives. As we’ve said before, the United States should lead the world when it comes to transparency, accountability, and respect of civil liberties and human rights. We urge the U.S. Government to reconsider this decision and grant our petition for greater transparency around national security requests for user data.”

And LinkedIn weighed in: “LinkedIn deeply respects and supports the U.S. government’s strong interest in, and its obligation to protect, national security. However, we believe this interest must be weighed against transparency and accountability. We firmly believe that what we are seeking — the disclosure of the number of U.S. national security-related requests that we receive — is consistent with national security interests, the law and our commitment to transparency.”

In its brief, the government rejected the companies’ arguments about First Amendment rights and said that public debate around surveillance was a justification for more transparency.

It said: “Contrary to the companies’ argument that they have a First Amendment right to disclose this sensitive national security information, it is well-settled that prohibitions on the disclosure of classified information, such as the ones contained in this Court’s orders, satisfy the First Amendment. The Government has a compelling interest in protecting such national security information from disclosure, and the prohibitions on disclosure are narrowly tailored to protect that interest.”

And, regarding all the public outcry since the Edward Snowden disclosures about widespread data collection: “Although the Government has attempted to release as much information as possible about the intelligence collection activities overseen by this court, the public debate about surveillance does not give the companies the First Amendment right to disclose information that the Government has determined must remain classified.”

Oh, and for good measure, the Justice Department also said that decisions about declaratory relief were out of the jurisdiction of the Foreign Intelligence Surveillance Court, where the dispute is being held.

I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

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